How do Mississippi Courts View Joint Physical Custody Arrangements?

Very commonly our office receives inquiry from parents seeking to obtain joint physical custody of a minor child or children. It is first important to recognize the distinction between legal and physical custody, which topic has been discussed in several of our previous posts, but I digress. The basic logic that is employed by the majority of Chancery Court judges in Mississippi is that it is preferable for a minor to have a primary physical residence, i.e., a soft place to land on a consistent basis without excessive “switching” of residences. Also, consider that most public school districts require proof of primary residence (as in one primary “home”) in order to meet admission criteria.

It is notable that statute in Mississippi mandates, with rare exception, that courts must approve of joint physical custody agreements. Therein is the rub: rarely are former lovers able to form an agreement that both can live with due to the highly emotional nature of child custody litigation whether in a divorce or otherwise.

There is no question that most commonly chancery judges prefer to award primary physical custody to the person deemed to be the better parent (based upon the best interests of the child) and to grant only standard visitation to the other. Standard visitation will be discussed at length in an upcoming entry, but basically consists of every other weekend, 10 days during the Christmas Holidays, alternating major holidays/birthdays, and two 2-week periods of summer visitation.

There are several judges we deal with on a regular visitation that local domestic attorneys refer to as “standard visitation” judges. They are not often inclined to deviate much, if at all, from standard visitation. That being said, there are others who will more creatively craft a schedule which is in excess of that contemplated by the statutes that clarify the meaning of standard visitation.

Many factors are at play, but for the purpose of this article we will exclude the chancellors who are not inclined to deviate from the basic fundamentals of standard visitation. This is not to say that many chancery judges cannot be convinced to award joint physical custody in spite of an inclination otherwise. Again, it is absolutely crucial that we are discussing this basic principle within the context of matters where a custody agreement cannot be reached by the parents.

In short, it should always be the first order of business to attempt to forge a joint custody agreement with your child’s other parent. If you are reading this, you have likely already recognized that it is much easier said than done. Only after you have turned over every stone to work together without success should you consider filing a contested custody matter.

When litigating child custody matters, always remember that joint physical custody of your minor children becomes more difficult the further away you live from the other parent. If you do in fact live relatively closely to your child’s other parent and you have a relatively healthy relationship with them and are able to communicate without significant friction, particularly regarding your child’s well-being, your odds of the court awarding joint physical custody increase a great deal.

It is always a partial victory, even when denied equal custody, to be awarded additional time with your children beyond standard visitation. Chancellors have broad discretion in these matters and may craft a visitation schedule in any number of ways, so make sure your attorney has considered making the vast array of arguments that suit your unique set of facts. Do not forget that tax consequences of a minor’s residence are most commonly based upon their primary residence unless agreed to otherwise.

If you have been unable to reach an agreement with your child’s father or mother regarding joint custody or to obtain something in excess of standard visitation, we will utilize all existing case law, statute, as well as subjective factual argument to your advantage.